Even if all the conditions are not yet specified, socioeconomic activity should largely resume from May 11, partly in France. Employees who consider the situation insufficiently secure from a health point of view, can they exercise their right of withdrawal? Response elements.
What is the right of withdrawal?
The labor code provides that a worker may withdraw from a work situation which he has reasonable grounds to believe poses a serious and imminent danger to his life or his health.
What is a serious and imminent danger?
The assessment is made on a case-by-case basis. Can be considered as "serious" any danger likely to produce an accident or an illness resulting in death or appearing to result in a permanent or prolonged temporary incapacity and as "imminent", any danger likely to materialize suddenly within a short time.
Can Covid-19 be considered a serious and imminent danger?
Yes and no, it all depends on the state of circulation of the virus. In the French part of Saint-Martin, to date there is only one active case in the territory and another hospitalized in Martinique. The risk of contracting the virus is therefore low since the infected patient is in isolation at home; the danger is therefore not imminent.
In addition, the Ministry of Labor specifies: "in the current context, insofar as the employer has implemented the provisions provided for by the Labor Code and national recommendations aimed at protecting the health and ensuring the safety of his staff, that he has informed and prepared his staff, in particular within the framework of the staff representative institutions, the individual right of withdrawal cannot in principle be exercised. "
The law stipulates that it is not the responsibility of the employer to guarantee the absence of any exposure of employees to risks but to avoid them as much as possible and if they cannot be avoided, to evaluate them regularly, in particular recommendations from the government, in order to then take all the necessary measures to protect the exposed workers ”.
The assessment of the elements which could lead to believe that the continuation at the work station presents a serious and imminent danger falls, if need be, on the judge who checks the reasonableness of the reason.
What happens if the employee still exercises his right of withdrawal?
If there is no serious and imminent danger in an employee's work situation, the exercise of the right of withdrawal by said employee will be considered abusive.
A deduction from wages for non-performance of the employment contract may be made. The unfounded exercise of this right does not characterize the existence of serious misconduct, but can constitute a real and serious cause for dismissal, specifies the Ministry of Labor.
(soualigapost.com)
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